The “Ambiguity” Fallacy
\\jciprod01\productn\G\GWN\88-5\GWN502.txt unknown Seq: 1 2-SEP-20 11:10 The “Ambiguity” Fallacy Ryan D. Doerfler* ABSTRACT This Essay considers a popular, deceptively simple argument against the lawfulness of Chevron. As it explains, the argument appears to trade on an ambiguity in the term “ambiguity”—and does so in a way that reveals a mis- match between Chevron criticism and the larger jurisprudence of Chevron critics. TABLE OF CONTENTS INTRODUCTION ................................................. 1110 R I. THE ARGUMENT ........................................ 1111 R II. THE AMBIGUITY OF “AMBIGUITY” ..................... 1112 R III. “AMBIGUITY” IN CHEVRON ............................. 1114 R IV. RESOLVING “AMBIGUITY” .............................. 1114 R V. JUDGES AS UMPIRES .................................... 1117 R CONCLUSION ................................................... 1120 R INTRODUCTION Along with other, more complicated arguments, Chevron1 critics offer a simple inference. It starts with the premise, drawn from Mar- bury,2 that courts must interpret statutes independently. To this, critics add, channeling James Madison, that interpreting statutes inevitably requires courts to resolve statutory ambiguity. And from these two seemingly uncontroversial premises, Chevron critics then infer that deferring to an agency’s resolution of some statutory ambiguity would involve an abdication of the judicial role—after all, resolving statutory ambiguity independently is what judges are supposed to do, and defer- ence (as contrasted with respect3) is the opposite of independence. As this Essay explains, this simple inference appears fallacious upon inspection. The reason is that a key term in the inference, “ambi- guity,” is critically ambiguous, and critics seem to slide between one sense of “ambiguity” in the second premise of the argument and an- * Professor of Law, Herbert and Marjorie Fried Research Scholar, The University of Chi- cago Law School.
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